ABSTRACT
Tales of discovery are commonly used as evidence in Canadian litigation surrounding aboriginal rights and title. Contemporary legal disputes between aboriginal peoples and the Canadian provincial and federal governments have demanded an historical accounting of the territorial space and the nature of its past use. Accordingly, travelogues, journals, reports, and the general written observations of explorers and early fur traders have come to hegemonize legal proceedings. It is difficult to reconcile the conflicting—and often extreme—interpretations of these texts as mostly imaginative literature, a view increasingly held outside of the law, and as authoritative evidence, a position adopted in legal proceedings. Canadian courts and litigants have minimized issues of evidentiary reliability and hearsay. Instead, one witnesses the emergence of a substantive legal regime that relies on misguided strategies to privilege the explorer record. As a collection, tales of discovery are viewed as an archive from which knowledge may comfortably be drawn. This chapter problematizes law’s commitment to these strategies. It examines a prominent legal case from British Columbia to explore the law’s unwavering investment in the “historical” record.
